DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket 7564-18 Dear This letter is in reference to your application for correction of your naval record pursuant to Title 10, United States Code, Section 1552. After careful and conscientious consideration of the entire record, the Board for Correction of Naval Records (Board) found that the evidence submitted was insufficient to establish the existence of probable material error or injustice. Consequently, your application has been denied. Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your application on its merits. A three-member panel of the Board, sitting in executive session, considered your application on 14 November 2019. The names and votes of the members of the panel will be furnished upon request. Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board. Documentary material considered by the Board consisted of your application, together with all material submitted in support thereof, relevant portions of your naval record, as well as applicable statutes, regulations, and policies. You enlisted in the Marine Corps, with a waiver for pre-service drug use, on 16 April 1996. As part of your enlistment paperwork, you previously signed on 31 January 1996, the Marine Corps Policy Concerning Illegal Use of Drugs. On 24 April 1997, you received a “page 11” counseling warning for drinking underage and drunk and disorderly conduct in the barracks. On 31 March 2000, after consulting with legal counsel and in accordance with your plea of guilty, you were convicted at summary court-martial (SCM) of the wrongful use of methamphetamine. Prior to the SCM date, you had previously refused a drug dependency evaluation at in February 2000. On 31 March 2000, you were notified that you were being processed for an administrative separation from the naval service for misconduct due to drug abuse. Pursuant to the terms of your special court-martial (SPCM) pretrial agreement, in exchange for having your wrongful drug use referred to a SCM instead of your then pending SPCM, you agreed to plead guilty at SCM and waive your right to present your case to an administrative discharge board (ADB). Ultimately, on 14 April 2000, you were discharged from the Marine Corps with an other than honorable (OTH) characterization of service, just one day shy of your end of obligated service (EAS). On 17 July 2013, the Naval Discharge Review Board (NDRB) reviewed your application to upgrade your discharge and determined that your discharge was proper and equitable, and that no change was warranted. The Board carefully weighed all potentially mitigating factors in your case, including your contentions that you desire Department of Veterans Administration (VA) benefits, that you received a good conduct medal, and that you served your contract to the last day. However, the Board found that your contentions and mitigating factors were insufficient to warrant relief in your case given the overall seriousness of your drug-related misconduct while on active duty. The Board also noted, contrary to your contention, that you did not complete your entire enlistment contract. You were officially administratively separated and discharged for misconduct on 14 April 2000, one day prior to your EAS of 15 April 2000. Moreover, your administrative discharge was negotiated by you as part of a pretrial agreement to avoid trial by SPCM and a potential punitive discharge. The Board also noted that, although one’s service is generally characterized at the time of discharge based on performance and conduct throughout the entire enlistment, the conduct or performance of duty reflected by only a single incident of misconduct may provide the underlying basis for discharge characterization. Moreover, characterization under OTH conditions is generally warranted for misconduct. Accordingly, the Board determined that there was no probable material error or injustice in your discharge, and that your misconduct supports your receipt of an OTH discharge. Additionally, the Board reviewed your application under the recent guidance provided in the Under Secretary of Defense’s memorandum dated 25 July 2018 entitled, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” (USD Memo). The purpose of the USD Memo is to ease the process for veterans seeking redress and assist Boards for Correction of Military/Naval Records “in determining whether relief is warranted on the basis of equity, injustice, or clemency.” The USD Memo noted that “increasing attention is being paid to…the circumstances under which citizens should be considered for second chances and the restoration of rights forfeited,” and that “BCM/NRs have the authority to upgrade discharges or correct military records to ensure fundamental fairness.” The USD Memo sets clear standards and principles to guide BCM/NRs in application of their equitable relief authority, and further explains that boards shall consider a number of factors to determine whether to grant relief, such as positive or negative post-service conduct, including any arrests or convictions. However, even in light of the USD Memo, the Board still concluded that, given the totality of the circumstances, your request does not merit relief. It is regretted that the circumstances of your case are such that favorable action cannot be taken. You are entitled to have the Board reconsider its decision upon the submission of new matters, which will require you to complete and submit a new DD Form 149. New matters are those not previously presented to or considered by the Board. In this regard, it is important to keep in mind that a presumption of regularity attaches to all official records. Consequently, when applying for a correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice.